Oral Argument Preview: Unsealing a Judicial Record of Acquittal? State of Ohio v. Terrell Vanzandt

On May 27, 2014, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Terrell Vanzandt, f.k.a. Terrell Asberry, 2013-1010. This case deals with the question of whether judicially sealed records of non-convictions may be unsealed by a trial court and used in a subsequent criminal proceeding stemming from the sealed case.

Case Background

Terrell Vanzandt (Appellant) was originally indicted on three counts of drug trafficking and one count of aggravated trafficking. A jury acquitted Vanzandt on all charges and he subsequently moved to seal the record pursuant to R.C. 2953.52, which the trial court granted.

Three months later, the State (Appellee) moved to unseal the record based on allegations that Vanzandt had retaliated against the confidential informant involved in the trafficking case. After conducting a hearing on the issue, the trial court granted the motion to unseal Vanzandt’s record for the limited purpose of use by the State in the retaliation case.

The First District Court of Appeals affirmed the trial court’s order to unseal Vanzandt’s record. The appellate court found that a court possesses the inherent authority to unseal records that have been sealed, and may exercise that authority in unusual and exceptional cases, even though the court lacked explicit statutory authority to do so. The court based this finding on Pepper Pike v. Doe’s holding that judicial authority exists to seal a case absent statutory authority. The ruling in Pepper Pike pre-dated the enactment of R.C. 2953.52. The court reasoned that a court with authority to seal a record would suggest the existence of comparable extra-statutory authority to unseal a case.

The appeals court then applied the balancing test from Pepper Pike, where the interests of the accused in his good name and right to be free from unwarranted punishment are weighed against the legitimate need of the government to maintain records. Ultimately, the court determined the trial court’s narrowly tailored order adequately limits use of the record to the retaliation case, which balances the interests of the State and Vanzandt.

Key Statutes and Precedent

R.C. 2953.52 allows any person (1) found not guilty by a jury or by a court…to file an application in support of sealing the official records affiliated with the case. The trial court must follow the procedures prescribed in the statute before sealing the records, which includes a codification of the Pepper Pike balancing test at R.C. 2953.52(B)(2)(d).

R.C. 2953.53(D) provides the necessary actions which must be taken by a public office or agency when a court order to seal records is received. The section provides that the public office or agency may maintain an index of sealed official records which are not to be made available to any person, except: (1) the person who is the subject of the record, (2) a law enforcement officer involved in the case, for use in the officer’s defense of a civil action arising out of the officer’s involvement in the case, (3) a prosecuting attorney or his assistants to determine a defendant’s eligibility to enter a pre-trial diversion program under R.C. 2935.36 or R.C. 4301.69(E)(2)(b).

R.C. 2953.54(A)(3) allows an additional exception for law enforcement agencies to share information from sealed records in the investigation of another offense, “if the facts incident to the offense being investigated by the [second] law enforcement agency and the facts incident to [the sealed offense] are reasonably similar.” However, the statute limits the information which may be shared to the name of the person whose record is sealed, if the original investigating agency believes that information to be necessary to the second agency’s investigation.

Note: R.C. 2953.51-2953.61 does not otherwise contain a statutory procedure for unsealing a sealed record of non-convictions.

Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981) was decided before a statutory remedy was available to determine how to seal records of non-convictions. The Court held (1) trial courts have jurisdiction to order expungement and sealing of records in a criminal case where the charges are dismissed with prejudice prior to trial by the party initiating the proceeding, and (2) trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction. To exercise such power, the court should use a balancing test which weighs the privacy interest of the defendant against the government’s legitimate need to maintain records of criminal proceedings.

Vanzandt’s Argument

Vanzandt argues enactment of R.C. 2953.53(D) after the Court’s decision in Pepper Pike clearly defines how and by whom sealed records may be used, thus removing judicial discretion over sealed records outside the confines of the statute. Absent an explicit statutory exception allowing for the record to be unsealed for use by the prosecution in a future case, the court may not unseal a record once it is sealed. Vanzandt also points to State v. Weber and State v. Netter, which require courts in the case of sealed convictions to look to the statute for exclusive authority; therefore courts cannot look beyond the statutes and use judicial discretion to unseal the record if the statutes do not provide such a mechanism.

Finally, Vanzandt argues against the application of R.C. 2953.54(A)(3); the exception, which is meant to allow two law enforcement agencies to cooperate with a strict limitation on how much information can be shared, is inapplicable because prosecutors are not a law enforcement agency.

State’s Argument

The State makes two arguments for affirming the appellate court’s ruling. First, trial courts have discretion to unseal records if there is a compelling reason to do so. The State noted the statutes which govern sealing of non-conviction records lack an exception equivalent to R.C. 2953.32(E), which in the case of sealed convictions allows “proof of any otherwise inadmissible prior conviction [to] be introduced and proved, notwithstanding the fact that for any such prior conviction an order of sealing previously was issued. . . .” Relying on R.C. 2953.54(A)(3), the State argues the statute allows law enforcement to use the sealed records in a subsequent prosecution, but the limited information allowed by the exception fails to meet the State’s needs to successfully prosecute the retaliation charge.

Second, the State argues the need to use sealed records in a criminal prosecution is a compelling reason to unseal the records. The State points to Pepper Pike as precedent, arguing the court may rule judicial power exists in unusual and extreme cases to unseal records even when there is no statutory provision specifically authorizing the action. Under R.C. 2921.05, the State can only be successful in a retaliation case by showing Vanzandt retaliated against a witness in a criminal action who testified against him; this requires the State to prove there was a case, which is not possible while the records remain sealed. The State argues the trial court’s narrow order permitting the use of the records in the retaliation case, with the requirement the records be resealed upon completion of the case, provided fairly balanced discretion between the needs of the State and Vanzandt.

Vanzandt’s Proposed Proposition of Law

The trial court erred to the prejudice of the Appellant by granting the State’s Motion to Unseal Case. (Professor’s note—this is an assignment of error, not a proper proposed proposition of law)

State’s Proposed Counter Proposition of Law

Trial courts have discretion to unseal the records of a case that has been sealed under R.C. 2953.51, et seq. when there is a compelling reason to do so. The state’s need to use expunged records in a criminal prosecution is a compelling reason to unseal records.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.